from the journalism! dept

Last night I started seeing a bunch of folks on Twitter absolutely trashing 60 Minutes. We had mentioned last week that 60 Minutes would be doing something about the NSA, including the revelation that some NSA officials favored granting Snowden asylum, and that Keith Alexander ridiculously stated that people should be held accountable for their actions -- without recognizing the irony of that statement when pointed at himself. What we didn't realize was that the episode of 60 Minutes would be a complete propaganda infomercial for the NSA. Among the many, many, many issues with the program:

The reporting was conducted by John Miller, a former intelligence community official (who worked for the Office of the Director of National Intelligence, which oversees the NSA) in a spokesperson role and a variety of historical roles in the intelligence community. While he does "disclose" the ODNI role upfront (but not the others), he left out that he's about to be hired in an intelligence role for the NYPD, a deal that has been described as "a 99.44 percent done deal." Also, in the past, when he also worked for the NYPD, he had a bit of a problem with telling the truth. Miller is, clearly, an intelligence industry spokesperson at heart, pretending to be a journalist here.

There was not a single hard hitting question asked throughout. It was all softballs. Seriously. Many of the setup questions were the same bogus strawmen we've seen the NSA focus on in the past -- concerning things like "is the NSA listening to everyone's calls." But that isn't what people are actually concerned about. At no point did they appear to even attempt to ask followup questions when the NSA people made clearly misleading statements, such as those concerning the surveillance of "US persons."

Not a single critic of the NSA was shown during the entire episode. Seriously. Not a single claim by the NSA was refuted or pushed back on. At all. Basically, Miller served up softballs, the NSA hit 'em back, and the "investigative journalists" at 60 Minutes said, "Wow, isn't that amazing!"

They admit that they did this piece because the NSA "invited them in." In other words, this was purely a propaganda piece from the very outset. The most hysterical thing to watch is the "overtime" bit that they have on the website in which they explain how 60 Minutes got to do this story on the NSA, which reveals that basically the NSA asked them to do this puff piece and then controlled every second of the process. There are even a few outtakes where the NSA "handlers" cut off parts of interviews to tell people what to say.

Miller claims he spoke to NSA critics and asked them what they would ask, but that's not reflected in the questioning at all. He then defends the piece saying that his goal was to let the NSA explain its side of the story, which he argues wasn't getting enough attention. Seriously.

Because this is really the side of the story that has been mined only in the most superficial ways. We’ve heard plenty from the critics. We’ve heard a lot from Edward Snowden. Where there’s been a distinctive shortage is, putting the NSA to the test and saying not just ‘We called for comment today’ but to get into the conversation and say that sounds a lot like spying on Americans, and then say, ‘Well, explain that.’”

Try not to laugh at that. He even claims that he didn't want it to be a puff piece -- which is exactly what it was.

The one big "revelation" in the piece involves NSA people implying, but never actually saying, how they stopped some sort of plot to turn everyone's computers into bricks by infecting the BIOS. But, as lots of people who actually understand this stuff are noting, that segment was pure gibberish:

There are no technical details. Yes, they talk about "BIOS", but it's redundant, unrelated to their primary claim. Any virus/malware can destroy the BIOS, making a computer unbootable, "bricking" it. There's no special detail here. All they are doing is repeating what Wikipedia says about BIOS, acting as techie talk layered onto the discussion to make it believable, much like how Star Trek episodes talk about warp cores and Jeffries Tubes.

Stripped of techie talk, this passage simply says "The NSA foiled a major plot, trust us." But of course, there is no reason we should trust them. It's like how the number of terrorist plots foiled by telephone eavesdropping started at 50 then was reduced to 12 then to 2 and then to 0, as the NSA was forced to justify their claims under oath instead of in front of news cameras. The NSA has proven itself an unreliable source for such information -- we can only trust them if they come out with more details -- under oath.

Moreover, they don't even say what they imply. It's all weasel-words. Nowhere in the above passage does a person from the NSA say "we foiled a major cyber terror plot". Instead, it's something you piece together by the name "BIOS plot", cataclysmic attacks on our economy (from the previous segment), and phrases like "would it have worked".

Part of the piece, bizarrely, focused on smearing Ed Snowden based on a completely out of context statement about how he would work at home with a sheet over his head to keep work secret. Given the realities of what the NSA is doing, and what Snowden was up to, that doesn't sound so strange. Yet, Miller (not the NSA), made it out like Snowden was a wack job for this:

John Miller: At home, they discovered Snowden had some strange habits.

Rick Ledgett: He would work on the computer with a hood that covered the computer screen and covered his head and shoulders, so that he could work and his girlfriend couldn't see what he was doing.

John Miller: That's pretty strange, sitting at your computer kind of covered by a sheet over your head and the screen?

Rick Ledgett: Agreed.

There was more, but it's more of the same. You have the producers of the episode oohing and ahhing about how the NSA's headquarters looked like something out of Star Trek, and how they had to fight hard to get the NSA to open a door for the NSA's "black chamber" -- showing a couple of cubicles.

Coming so soon on the heels after 60 Minutes totally bungled a report on Benghazi, you would think that the once respected news program might try a little harder not to post something so obviously ridiculous. But, apparently not. While many have suggested that the NSA communications people should get a raise for pulling off such pure propaganda, some are pointing out that the whole thing was so obviously a bogus puff piece that no one's buying it. Anthony DeRosa has put together a series of tweets about the episode and hasn't yet been able to find a single person who reacted positively to it. Not a single one.

It's no secret that the NSA isn't very good at PR but, in this case, not only may they have harmed their case, they helped CBS News shoot themselves in the foot, yet again, over whatever shreds of journalistic credibility they may have had.

from the moving-forward dept

Just last week, we noted that a court in NY had rejected an attempt by ABC and CBS to shut down DISH's AutoHopper offering that helps users automatically skip commercials (along with their PrimeTime AnyTime feature that automatically records prime time network TV). That came after a ruling in California in a nearly identical case, this time by Fox and NBC. That case had moved forward and it appears that, yet again, a court has said no to the attempt to get an injunction against DISH. The full decision isn't out yet, but the parties have seen the ruling and it's clear that DISH won, and Fox didn't:

"We have just received the ruling, and while the judge found that Fox could prevail at trial on the merits of the case, she did not grant our preliminary injunction," says a Fox in a statement. "We disagree that the harms caused by Dish’s infringing services are completely compensable by damages, and as a result we are looking at all options. We will file a response in due course."

While the details matter, it seems pretty clear that (as the court has said before), even if DISH is found to have infringed (though it expresses some skepticism on the likelihood of such an argument working), the court doesn't see any irreparable damages from letting the technology move forward. This is a good thing. All too often, it seems that the copyright maximalist organizations view any possible infringement as "irreparable" harm, even though it's nothing of the sort.

from the and-off-we-go dept

Last year, DISH won a nearly complete victory against Fox and NBC in California over the legality of DISH's AutoHopper feature, which skips over commercials with shows that the DVR offering records. However, there were two separate lawsuits on this issue: that one in California, and another one involving CBS and ABC in New York... and that court has basically ruled the same way, refusing to grant the networks an injunction to block the DISH product. The full ruling is under seal (most likely to redact certain parts) and will be released with redactions sometime soon (next week, I think).

As the link above notes, the court did say that CBS could try to unwind its retransmission agreement with DISH, arguing that DISH misled the company when they were working on that agreement. It also notes that ABC's carriage agreement with DISH expires at the end of this month, and that "negotiations [are] not going well, with a possible blackout happening soon." In other words, the networks are likely about to shoot themselves (and the public) in the foot by pulling their channels from DISH in a petulant act of self-harm, because they're upset that DISH is innovating and offering the public what they want in a manner that the networks won't do.

from the last-ditch-shot-at-a-pyrrhic-victory dept

Broadcasters are understandably sick of the fellas at the freaking FCC. It's 2013, but shows on the public airwaves are still forced to follow a weird pastiche of morality rules seemingly cobbled together from the standards of multiple different generations and interest groups. Not only are these rules extremely questionable in a country with free speech, they are plainly obsolete: everyone has easy access to the whole perverted rainbow of obscenity, and enforcing a moral standard of media is clearly a matter of personal and family responsibility. Public TV networks no longer have the influence on culture that they used to, given competition from cable, online media, and other things over which the FCC has no control — and, surprisingly enough, the broadcasters themselves are now making that very argument:

ABC, CBS, Fox, and NBC also say that rules are archaic because the networks have lost so much cultural clout. Fox says in an FCC filing, “Americans today, including children, spend more time engaged with non-broadcast channels delivered by cable and satellite television, the Internet, video games and other media than they do with broadcast media.” In a separate filing, NBCUniversal observes that ”Broadcast TV is not a uniquely pervasive presence in the lives of 21st Century Americans.” Broadcast network affiliates’ total day share of viewing “was just 28 percent in the 2010-2011 television season – compared to the 53 percent viewing share held by ad-supported cable programming networks.” CBS also notes that “the day when a child watching television was almost certain to be watching broadcast television has long since passed.”

Looks like someone at the TV networks realized what year it is too. We may need to update the NBC business model:

Of course, what goes unmentioned is the fact that escaping FCC regulations is clearly part of a plan to regain relevance. Which is entirely fair. There are a bunch of reasons for the decline of network television, primarily technological, but the fact that so many top-level stars, producers and showrunners are flocking to the less-restrictive world of cable and the internet certainly can't be helping. Look at a huge network hit like Seinfeld: after that success, and with a virtual carte-blanche to experiment, of course Larry David would make his next show for a cable network like HBO. And as Julia Louis-Dreyfus once remarked in an episode of said show, "I want to be able to say fuck," so it's hardly a surprise that a show like Veep ends up on HBO too. Plus Veep's creator, Armando Iannucci, hails from the UK with its early watershed hour, at which point broadcast shows can do pretty much whatever they like — it's hard to imagine him wanting to work within the confines of FCC regulations either. That's a whole bunch of talent creating successful, critically-acclaimed shows — and not creating them for NBC, the network that spawned the breakout hit that got the ball rolling in the first place.

Let's hope the FCC listens. The networks have a whole lot of work to do if they want to regain real relevance, and they haven't always been good at it, but I have no desire to see them further hindered by obsolete morality rules pushed by the busybodies at the Parents Television Council (who, it will surprise nobody to learn, vociferously oppose these filings). Let's give NBC a chance to make the next Eastbound & Down or Lucky Louie. Let's let ABC scrap Dancing With The Stars in favor of Katherine Ryan's more innovative The Voice competitor, The Ass. And let's let PTC president Tim Winter squirm in the home theater throne from which he judges all that is wrong on the air, as the epidemic of pixellated nudity becomes an explosion of Game of Thrones-style sexposition. The broadcasters have enough problems already.

from the uh,-nice-try dept

You may recall that back in April we wrote about CBS threatening to sue Aereo if it launched in Boston, as announced. We quoted CBS's Dana McClintock, exec VP of communications, who said on Twitter:

We will sue, and stealing our signal will be found to be illegal in Boston, just as it will be everywhere else.

Seems like a pretty clear and definitive statement. CBS CEO Les Moonves said something similar in a conference call:

If they put up another signal, we'll sue them again.

Aereo then did exactly what it should: it sued first, seeking a declaratory judgment that its service was legal and that it could launch in other markets without fear of expensive lawsuits from CBS. This is what the whole declaratory judgment setup is for. Exactly cases like this where one party threatens another in an effort to scare them off by the threat of expensive court battles.

However, CBS now, hilariously, is trying to claim that when it made those statements, it didn't really mean it would sue Aereo, so there's no controversy and the case should be dismissed. Let me just repeat this one for you. CBS is claiming that when two of its top execs said "We will sue" and "we'll sue them again," it didn't actually mean that it would sue. Wow. That's a special sort of chutzpah.

Instead, CBS claims that Aereo should sit pretty and wait to be sued:

"If the threat of litigation is as imminent as Aereo claims, it will have every opportunity to defend its actions if and when it launches in other cities and if it is sued in those jurisdictions."

Um, that's the whole freaking point of declaratory judgment actions, to avoid having to sit and wait to be sued, so that a company can get on with its business. CBS seems to be admitting here that it's threatening Aereo just to mess with its business plans. How nice.

How about the direct statements from the execs? Eh, what's a little public threat of lawsuits between execs and the press? Certainly not a serious threat, right? Concerning the McClintock statement, they claim that his statement was only referencing Boston, so it's not like it really matters.

Mr. McClintock's "threat" clearly is contained to Boston; his only reference to other locations is the vague assertion that Aereo “will be found to be illegal" "everywhere else" – hardly a concrete promise that any of the named defendants intends to sue Aereo in some other location.

Er, actually, yes, read the quote again. It's a pretty clear statement that Aereo will be sued "everywhere." How about the Moonves quote?

One simply cannot read what Mr. Moonves actually said and say with any certainty – much less with the level of concreteness necessary to sustain a declaratory judgment action – that CBS announced an intention to sue Aereo in any city other than Boston.

Um, again, Moonves's quote is pretty clear that they will sue anywhere Aereo shows up. He said "if they put up another signal, we'll sue them again."

from the cost-cutting dept

We keep hearing the MPAA and others talk about how much Hollywood is suffering from piracy and how they can't fund new movies and how they're having to lay people off. And then there's this, suggesting something else may be going on:

Consider: the top 20 companies in the United States ranked by market capitalization include no media companies. But according to figures assembled for The New York Times by Equilar, which compiles data on executive compensation, media companies employ seven of the top 20 highest paid chief executives.

Basically, the study showed that media companies might not be as big as companies in other industries, but they pay their execs way more. Basically, the top execs in the media business make much more than comparable execs in other industries, even if the companies those execs work for are doing much better:

The data indicates that average pay of the 10 highest paid chief executives for media companies was about $30 million, more than the captains of technology or finance and other industries, who average $6 million to $14 million less.

A few years ago, a friend who worked in the movie industry told me that the industry changed completely when the top executives started thinking that they were the stars. Suddenly, the focus shifted from making good entertainment to making sure they were the highest paid people around, and making sure that everyone knew it. I thought it was just a random comment at the time, but the data suggests that there's at least something to the idea that media execs have way outsized salaries.

Either way, though, it does seem somewhat ridiculous to see any of the folks on the list above complaining that their business is in trouble when they're pulling down salaries like that.

from the a-forwarding-address-really-won't-be-necessary dept

CBS CEO Les Moonves has said before that he’s talked with New York cable operators about taking his network cable-only if Aereo is allowed to keep streaming what it broadcasts on the internet, but now he’s saying that he could make the switch in as little as a few days "if we are forced to."

"Forced to?" What a small-minded, self-serving, overly dramatic "threat." I'll join Mike and a majority of our readers in inviting Moonves to go do exactly that ASAP. Stop arsing about in court and just take that shiny ball of yours and cram it into the overcrowded cable market and see exactly who notices your departure or arrival.

By taking free CBS broadcasts off the airwaves, Moonves says, "about 10 percent of America will not get our signal and I don’t think they will like that."

And when people out there in flyover country (or wherever Moonves imagines this 10% lives) find themselves short a free TV signal, do you really think they're going to be pissed off at an antenna manufacturer whose only sin was its cord was "too long?"

In case Moonves might feel such a question purely rhetorical, allow me to point out the obvious: they will blame the station that went "off the air" for reasons even the courts are having trouble understanding. CBS will be the villain, along with FOX and whoever else decides the only way to compete in a market is to exit it.

And, yes, CBS is still claiming the courts will find "stealing" its precious signal "illegal." So far, this doesn't seem to be happening. If CBS really wants to play chicken with Aereo, I can only suggest it's not doing it nearly fast enough. Go ahead and give up the free airwave access and the enviable spot as a big fish in a rather limited pond and become just another number out of hundreds, distinguishable only by the number of executives suddenly grumpy they're running a cable channel rather than a network.

Even if Aereo cuts these channels out of retransmission fees from cable operators, who cares? This was the networks' short-sighted decision, one based on wringing money out of something they give away for free to anyone without cable. If Aereo is the cord-cutter's best friend, what does jumping to cable accomplish? If that's the scenario, CBS is better off losing the retransmission fees and staying on open airwaves where it takes nothing more than an antenna to access its programming, rather than exiling itself to a service people seem more and more willing to abandon.

If CBS thinks threatening to move to cable is going to turn the public against upstarts like Hopper or Aereo, it really has no idea what the public actually wants. It will simply turn itself into a lumbering villain at best and gone-but-barely-remembered also-ran at worst.

McClintock (CBS' exec VP of communications) sure doesn't mince words, but he does mince reality. The broadcasters are not faring well against Aereo, with the courts all apparently recognizing that the company has carefully followed the letter of the law established in the Cablevision ruling. It's bizarre that he would try to characterize the situation as an obvious win for CBS when the exact opposite is true — especially in a conversation with tech analysts and journalists. Still, points for confidence, I guess.

It didn't end there, either:

After [Verge editor Ben] Popper noted that CBS' signals were not being stolen and that the public owned the airwaves, McClintock responded: "Yet it's ok for Aereo to profit from the same public. Hmmm..."

Greenfield got in a zinger by noting the similarities between Aereo and Amazon's services. "Amazon 'makes money'" Greenfield wrote on Twitter, "on selling antennas to watch broadcast TV, and they ship to Boston."

The question of "profiting from the public" is a red herring, and not a smart one for CBS to bring up. After all, the networks profit from their public broadcasts, too. Do they plan to give back all the money they have made from selling ads on the publicly-owned airwaves for which they paid no access fee?

The fact that the airwaves are owned by the public only means what it sounds like. It means the ability to broadcast on the airwaves is permitted by the public — it does not have anything to do with how the public accesses those airwaves, or whether or not someone is making a profit. As Greenfield points out, by McClintock's logic, it would be wrong to charge money for a TV antenna.

The Twitter exchange perfectly highlights a key issue here: thanks to the vagaries of copyright law, the whole fight over Aereo (and over remote DVR) is basically a fight about the length of a wire. Selling a home TV antenna? Legal. Renting a home TV antenna to someone? Yup. Selling someone a setup that hooks their antenna into a computer and then into their network, so they can watch it on any of their devices? No problem. Renting that same setup to them? Sure thing.

But doing any of that from slightly further away? 'Illegal!' cry the networks.

Luckily, despite the networks' facade of confidence and silly threats to pull their broadcasts, the courts seem to be well aware of the ridiculousness of their argument. Given the recent rulings, it seems unlikely that a new lawsuit in Boston would gain much traction — but, of course, just the fact that the lawsuits keep on coming serves as a roadblock to Aereo's innovation. The broken analogies enforced by copyright law have resulted in an insane situation with online streaming (among other things), and the fact that the fight with Aereo has even gone this far (and shows no signs of stopping) just underscores the severity of the problem.

from the call-their-bluff dept

The entertainment industry has a long, long history of claiming that if copyright law doesn't go their way, they'll all go out of business. It's the adult version of "if you don't do it my way, I'm taking my ball and going home." If court cases don't go their way, or if the law isn't changed, we've been told over and over and over again for the last century (and more frequently in the last two decades) that the industry will take its ball and go home, because they won't create under such awful circumstances (even if those circumstances really aren't particularly different than they've operated under for years). The latest? First, Fox's COO, Chase Carey, claims that if they lose the Aereo case, they might shut down Fox, the network TV channel, and move all its content to cable TV channels.

“If we can’t have our rights properly protected through legal and governmental solutions, we will pursue business solution. One solution would be to take the network and make it a subscription service. We’re not going to sit idly by and let people steal our content.”

That came out about the same time as another quote from a TV exec, Garth Ancier, who has worked at Fox, NBC and WB, basically saying the same thing, arguing that an unnamed "two" of the four major networks are considering shutting down if the Aereo case (and possibly the Dish Auto Hopper case) goes against them.

“I know two that are talking about it,” he says, leaving open the possibility that the others might be as well. He declines to specify which, saying he’d heard it in a “talking over coffee” setting and didn’t want to betray a confidence....

“To say it’s serious is probably an overstatement,” Ancier says. Rather, it’s a contingency plan the networks in question are keeping in their back pockets in case they can’t prevail over Aereo and Dish in court or find some other way to stave off the threat they represent.

Let's be the first to call bullshit on this. No networks are stupid enough to shut down over this, and if they are, good riddance. Put that spectrum to better use. First of all, network TV shows get a lot more viewers. By a wide margin. Yes, there's an occasional cable show (Game of Thrones) that sneaks in to the top ratings, but it's pretty rare. The cable shows that get the most viewers are still viewed a lot less often than most network shows. If you look at Nielsen's latest rankings for last week, the top 10 network shows all scored higher ratings than the top cable show (Walking Dead). And by the time you're at the 4th most popular cable show, you're talking about a show that's getting just around half of the tenth most popular network show.

No network with any business sense at all is going to give up that prime position for getting viewers, and shunt themselves off into the hinterlands of cable TV. And, seriously, if they do want to cede that position, I'm sure there are plenty of smart folks willing to take over that position. And, of course, nothing that Aereo or Dish Hopper is trying to do does anything to threaten the traditional business model of network TV in the first place: ads. In fact, both serve to increase viewers. The real issue is that the networks have gotten fat and happy off of the money they get from cable and satellite companies for carrying the networks, and they don't want that gravy train to go away. So, an artificial situation came up that let them get lots of money, and now that it might go away (and reality is that it won't go away for a long long time) they're threatening to take their ball and go home?

This is clearly bullshit whining from the networks hoping that lawmakers will protect their revenues from cable and satellite providers. It has nothing to do with "stealing content" as Carey claims. Policy makers would be well served to call the networks' bluff. Let the cases play out and let's see (1) if the networks really give up their prime real estate and (2) if others don't rush in to make use of it.

from the seriously? dept

Last year, around NCAA Tournament time, I wrote a piece about how the NCAA was going backwards on streaming the games. Once free streams were locked up behind subscription charges, reducing the pool of eyeballs that could be watching the advertising that actually makes the NCAA and their broadcast partners the real money in this whole situation. It's been something of a disappointment for me, being a sports fan, to see how far the leagues are going to lock up their content rather than expose it to more revenue-generating viewers via the internet. Seriously, can't I just watch the game?

Things have changed a bit this time around to stream March Madness online. Last year, the NCAA charged a small fee for access to all of the games. This time around, any of the games that are broadcast on CBS are free for anyone to stream online. The games that are broadcast on TBS, TNT or truTV, the collection of Turner Broadcasting-owned channels, will require a cable subscription authentication.

While this may not strike some of you as wholly unreasonable, it's actually worse for several reasons. First, it's another step backwards from the way things are trending. Cable cords are being cut in favor of the evermore common micro-transactions that occur for online content. I didn't think last year (and still don't) that such a transaction made sense for the Tournament, because it naturally limits viewers for advertising purposes, but at least it was in keeping with the modern trend of viewership. For the NCAA to instead embrace a log in system to stream games that is trending downward in use is downright stupid.

Worse yet, it isn't as if all cable customers can get in either. At least that's the conclusion I came to yesterday when I grudgingly tried to log in from work to watch the games (sorry, boss) and found that my cable provider, 3rd largest provider in the 3rd largest market in America, wasn't listed in the log in options. This may be simply a result of RCN not having a deal worked out with either the NCAA or the cable channels in question, but as the end viewer I don't care about such things. RCN is the only provider for my building and the NCAA's system results in my not being able to watch the games and generate ad revenue for them and their broadcast partners.

Or, rather, I can't watch the games on their sites. I can certainly find them streaming elsewhere, where the ads aren't targeted to my region (or country) and fall outside of the NCAA's control regardless. The NCAA could do this freaky free streaming too, if they wanted. I saw them do it not 3 years ago. So why are they going backwards?